Case law

People v. Garrison

39 A.D.3d 1138 · Appellate Division of the Supreme Court of the State of New York · Apr 20, 2007

It is “obvious that the more the defendant shoots . . . the victim, the more clearly intentional is the homicide,” and the less “indifferent” it is (Payne, 3 NY3d at 272 ; see generally Suarez, 6 NY3d at 208-210 ; Gonzalez … Further, the Court of Appeals has stated that a “one-on-one” shoot *1140 ing, as was the case here, can “almost never” qualify as depraved indifference murder (Payne, 3 NY3d at 272 ).

Remba v. Federation Employment & Guidance Service

149 A.D.2d 131 · Appellate Division of the Supreme Court of the State of New York · Aug 17, 1989

qualified by the requirement that it create and present a substantial and specific danger to the public health or safety. … She has not and apparently cannot set forth facts sufficient to establish a statutory claim.

Midorimatsu, Inc. v. Hui Fat Co.

99 A.D.3d 680 · Appellate Division of the Supreme Court of the State of New York · Oct 3, 2012

A CPLR 3211 (a) (1) motion may be granted “only where the documentary evidence ut *682 terly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. … Materials that clearly qualify as “documentary evidence” include “documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are ‘essentially undeniable

Wilcox v. Newark Valley Central School District

74 A.D.3d 1558 · Appellate Division of the Supreme Court of the State of New York · Jun 10, 2010

Rather, defendants must plead the privilege as an affirmative defense and thereafter move for summary judgment on that defense, supporting the motion with competent evidence establishing a prima facie showing of qualified … By asserting that the allegations of the complaint establish a qualified privilege as a matter of law, defendants attempted to “short-circuit that procedure” by “improperly placing the burden on plaintiff to make competent

Watson v. Hudson Valley Farms, Inc.

276 A.D.2d 1004 · Appellate Division of the Supreme Court of the State of New York · Oct 26, 2000

The language of the statute is not restricted to the enumerated devices but clearly includes “other devices” which contractors and owners must construct, place and operate to give proper protection to workers. … As such, it qualifies as an elevation-related safety device within the meaning of the statute.

East 32nd Street Associates v. Jones Lang Wootton USA

191 A.D.2d 68 · Appellate Division of the Supreme Court of the State of New York · May 18, 1993

This type of "closed ended” continuity is clearly inapplicable in this case. … establish a pattern of racketeering.

People v. Ward

107 A.D.2d 892 · Appellate Division of the Supreme Court of the State of New York · Jan 17, 1985

establishing his leadership role in the whole operation. … participants in the crime and no guarantee that they would not have been called to testify against him at a separate trial, since their cases could have been disposed of before his trial or they could have been granted immunity

Ahmed v. City of New York

129 A.D.3d 435 · Appellate Division of the Supreme Court of the State of New York · Jun 4, 2015

to establish certain rates, standards of service, standards of insurance and minimum coverage; standards for driver safety.” … of qualifying standards required for such licensees” (New York City Charter § 2303 [b] [5]).

Albany County Department of Social Services v. Dickenson

54 A.D.2d 102 · Appellate Division of the Supreme Court of the State of New York · Oct 28, 1976

While a statutory change altering a husband’s obligation to support his family would qualify as a material change of circumstances that would compel judicial modification of extant support orders in conflict with such change … (Emphasis supplied.) *104 Clearly, since use of a support formula is not required when a court order exists establishing the support obligation and, further, since appellant chose only to advance the statutory change as "

People ex rel. Vineing v. Hayes

135 A.D. 19 · Appellate Division of the Supreme Court of the State of New York · Dec 3, 1909

Such position, however, was not established and although the salary list and number of employees in the department' were thereafter increased, it does not clearly appear that any of the new employees performed work similar … In any event, to entitle the relator to the relief asked he had to establish the contrary.

People v. Vizzini

183 A.D.2d 302 · Appellate Division of the Supreme Court of the State of New York · Nov 18, 1992

The experience of the investigator in the instant case clearly did not reach the level of the experience of the witness in Portanova (supra). … The possession count was established by evidence that a kilo and a half of cocaine was seized from his apartment.

People v. Ventiquattro

138 A.D.2d 925 · Appellate Division of the Supreme Court of the State of New York · Mar 4, 1988

This explanation was clearly incredible in view of the fact that the victim was shot in the back of the head. … Defendant’s testimony before the Grand Jury, made after he had consulted with counsel and had executed a waiver of immunity was clearly attenuated from the initial illegality and was properly received in evidence at defendant

Bailey v. New York Westchester Square Medical Centre

38 A.D.3d 119 · Appellate Division of the Supreme Court of the State of New York · Jan 9, 2007

Plaintiff has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of racial discrimination in employment. … Plaintiff was not qualified for this position, either by education or by experience.

People v. Hayes

295 A.D.2d 751 · Appellate Division of the Supreme Court of the State of New York · Jun 20, 2002

Specifically, defendant contends that the “force or threat of force” needed to establish aggravated criminal sexual assault in Illinois is not equivalent to New York’s “forcible compulsion” element. … Defendant contends that the use of the phrase “including but not limited to” qualifies the definition, thus permitting a threat to property to satisfy the “threat of force” element of the Illinois statute, which indeed would

Ware v. Valley Stream High School District

150 A.D.2d 14 · Appellate Division of the Supreme Court of the State of New York · Sep 5, 1989

The compulsory health education curriculum in controversy clearly meets this test as it involves several compelling State interests. … As the Supreme Court correctly noted, the Brethren is not an isolated community (cf., Wisconsin v Yoder, 406 US 205 , supra), nor is it "immune from the known hazards of AIDS”.

Stern v. McCaffrey

279 A.D. 461 · Appellate Division of the Supreme Court of the State of New York · Mar 11, 1952

Petitioner attempts to take advantage of his being temporarily out of work when he applied in 1945 to establish dependency. … Clearly, the sole basis for a decision that the present action was arbitrary or capricious would be that petitioner was entitled to the license, as a matter of law, as a needy dependent of a former licensee.

Empire State Chapter of Associated Builders & Contractors, Inc. v. Smith

98 A.D.3d 335 · Appellate Division of the Supreme Court of the State of New York · Jul 6, 2012

Article IX of the Constitution grants to local governments certain “rights, powers, privileges and immunities” with respect to local matters (NY Const, art IX, § 1; see Matter of Kelley v McGee, 57 NY2d 522, 537 [1982]; see … contend that the apprentice training requirement of that section applies to all Wicks Law contracts, and thereby disqualifies out-of-state contractors from large public construction projects in violation of the Privileges and Immunities

Board of Education of Union Free School District No. 3 v. Allen

6 A.D.2d 316 · Appellate Division of the Supreme Court of the State of New York · Jul 31, 1958

against its establishment. … asking for the organization of a central school district and the establishment of a central school therein.

Kletnieks v. Brookhaven Memorial Ass'n

53 A.D.2d 169 · Appellate Division of the Supreme Court of the State of New York · Jun 28, 1976

One innovative and promising concept brought to bear on this problem was the establishment three years ago of a medical malpractice mediation panel in the First Judicial Department. … Here no new "remedies” were created; rather, procedural rules were established to make explicit the inherent power of the panel Judge.

Belmont v. Sigua Iron Co.

12 A.D. 441 · Appellate Division of the Supreme Court of the State of New York · Jul 1, 1896

We are clearly of the opinion that the moving party was not entitled, upon his papers presented upon the motions, to attack the attachment for any defects in the papers upon which the same was granted. … Div. 519 ), this affidavit was insufficient to establish the fact averred by the managing clerk, that the receiver had duly qualified and had become invested with an interest in the defendant’s property attached.